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When the Tide Comes In: Towards Accessible Telecommunications for People with Disabilities in Australia

A discussion paper commissioned by the Human Rights and Equal Opportunity Commission

William Jolley, Chief Consultant
Jolley William & Associates
wjolley@bigpond.com

June 2003

3. Legislative and Regulatory Environment

3.1 Introduction
3.2 Disability Discrimination Act 1992
3.2.1 Introduction
3.2.2 DDA Definitions
3.2.3 DDA Complaints
3.2.4 Intervention in Court Proceedings
3.2.5 DDA Disability Standards
3.2.6 Granting by HREOC of Temporary Exemptions
3.2.7 Action Plans
3.2.8 Conduct of Inquiries by HREOC
3.2.9 Advisory Notes and Guidelines
3.3 Telecommunications Act 1997
3.4 Telecommunications (Consumer Protection and Service Standards) Act 1999
3.5 Industry Regulation
3.5.1 Australian Communications Authority
3.5.2 Australian Communications Industry Forum
3.5.3 Telecommunications Industry Ombudsman Scheme
3.6 HREOC Advice on Customer Equipment
3.7 Commonwealth Disability Strategy

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3.1 Introduction

The telecommunications industry, predominantly voice telephony, was traditionally government owned and tightly regulated in Australia. This monopolistic environment fostered a well-developed national network with comparatively good service, but some elements of mediocrity became entrenched and tolerated. On the positive side most Australians were able to connect to the telephone network and there were cross-subsidies to reduce tariffs in rural and remote areas. On the other hand new installations, transfers and fault restoration were sometimes deemed to be slow. During the 1980s, as awareness dawned of the power of digital techniques, and as analysts around the world predicted enormous growth in telecommunications, governments moved towards full or part privatisation of their telecommunications companies and facilitated competition in their telecommunications industries.

Australia's telecommunications industry was opened up to competition during the 1990s: firstly, with the introduction of competition in the mobile telephony market; secondly, with competition among carriers and carriage services in the landline market segment; and thirdly, with the development of a regulatory regime for Internet service providers. To underpin and regulate the new competitive environment the Government has also:

DCITA (2000a) describes the development of the competitive telecommunications regulatory framework in Australia, including key issues and the policy solutions that have been adopted to:

Over the past ten years the needs and entitlements of people with disabilities have gained greater recognition in the telecommunications regulatory and consumer protection framework. The telecommunications laws both refer back to the Disability Discrimination Act 1992 as the over-arching legislation for equitable access by persons with disabilities to telecommunications products and services. Forms of communication, other than voice telephony, such as text connectivity for people with disabilities who require it, are acknowledged in the definition of the Standard Telephone Service. However, with the rapid development and convergence of communications technology, new services are becoming available, social interactions are changing, and customer expectations are increasing; therefore it is imperative that the underlying legislative framework is non-constricting and flexible.

3.2 Disability Discrimination Act 1992

3.2.1 Introduction

The Disability Discrimination Act (DDA) was passed by the Commonwealth Parliament in 1992 and enacted in March 1993. The text of the DDA is online at http://www.austlii.edu.au/au/legis/cth/consol_act/dda1992264/.

The DDA is administered by the Human Rights and Equal Opportunity Commission (HREOC). There is a part-time Disability Discrimination Commissioner and a part-time Deputy Disability Discrimination Commissioner. These people have responsibility for the DDA's promotion as a tool to fight discrimination and for its administration. HREOC also has a Disability Rights Unit which is staffed by three full-time policy analysts. The Disability Rights Unit maintains an excellent website which is a comprehensive guide to DDA-related documents (http://www.humanrights.gov.au/disability_rights/).

The DDA requires respect for the basic human rights of people with disabilities. It accepts that some differential treatment will be unavoidable, and that not all discriminatory practices can be remedied without imposing unjustifiable hardship. It uses principles of fairness and reasonableness to balance rights with responsibilities.

The objects of the DDA are stated in Section 3 as:
(a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:
(i) work, accommodation, education, access to premises, clubs and sport; and
(ii) the provision of goods, facilities, services and land; and
(iii) existing laws; and
(iv) the administration of Commonwealth laws and programs; and
(b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and
(c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.

The DDA contains important definitions set out in Section 3.2.1 below. It does not give a blanket prohibition on discrimination, Rather, it makes discrimination unlawful in specific areas which capture most aspects of community life. This includes: employment; education; access to premises used by the public (including public transport); provision of goods, services and facilities; existing laws; and the administration of Commonwealth Government laws and programs.

Broadly speaking HREOC has implemented seven major strategies as provided for in the DDA:

3.2.2 DDA Definitions

The DDA defines 'disability' quite broadly (refer to Section 4).

'Disability', in relation to a person, means:
(a) total or partial loss of the person's bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness; or
(e) the malfunction, malformation or disfigurement of a part of the person's body; or
(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
(h) presently exists; or
(i) previously existed but no longer exists; or
(j) may exist in the future; or
(k) is imputed to a person.

In addition to covering the traditional physical, sensory, intellectual and psychiatric disabilities, this definition covers the presence in the body of disease-carrying organisms and physical disfigurement. It also extends to imputed disability, whether it be in the past, present or future.

Section 5 of the DDA makes direct discrimination unlawful. If a person or organisation treats a person or his/her associate less favourably, for some reason in connection with his/her actual or presumed disability, it is unlawful.

Section 6 of the DDA defines indirect discrimination and makes it unlawful. It is deemed to occur if an aggrieved person is required to comply with a requirement or condition:
(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.

Sections 7-9 of the DDA makes it unlawful to treat a person with a disability less favourably when using a therapeutic aid or assistive device, or when accompanied by a human assistant or trained animal who or which acts as an assistant to the person in overcoming the handicapping effects of the disability.

Section 11 of the DDA introduces the concept of Unjustifiable Hardship. It does not define Unjustifiable Hardship. It simply states that all relevant circumstances of the particular case are to be taken into account, including:

Section 24 of the DDA makes it unlawful to discriminate in the provision of goods, services and facilities:

(1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates:
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
(2) This section does not render it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available.

3.2.3 DDA Complaints

3.2.3.1 Overview

The DDA is a complaints-based law. Aggrieved persons may make complaints to HREOC, or its agents operating at State or Territory level. The DDA does not contain an in-built mechanism for compliance monitoring, so the complaints mechanism is often the main means by which breaches of the DDA are raised and remedied. Since enactment of the DDA in March 1993, more than 5,500 complaints have been lodged. The number of complaints under the DDA is higher than for sex or race discrimination.

When HREOC receives complaints, they are sometimes rejected. This may be because: they are deemed to fall outside HREOC's sphere of responsibility; they are deemed to be insubstantial; or they are considered to be better dealt with by another statutory authority. In the latter case this would sometimes mean that they are better dealt with by anti-discrimination legislation under the jurisdiction of one of the States; however, in the context of telecommunications, it might mean that the complaint was better dealt with by the Telecommunications Industry Ombudsman (refer to Section 3.5.3).

HREOC has successfully conciliated most of the complaints which have been deemed to be relevant and substantial. Those which cannot be conciliated are referred to Hearing. When the DDA was first introduced it was HREOC which carried out the hearings and which could make binding determinations (subject to appeal to the Federal Court). However, the Hearings function was later removed from HREOC, due to an identified inconsistency with the Federal Constitution, and now Hearings are carried out by the Federal Court.

HREOC has adopted informal and flexible protocols for the receipt and handling of DDA complaints. Commission staff can help complainants to formulate their grievance in writing, and in some cases complainants are assisted to obtain help from other people such as interpreters or advocates. HREOC is satisfied that surveys of people who have used the complaints mechanism indicate that most people find HREOC's service accessible and valuable. By the same token, many people have found the complaints process time-consuming and stressful. They have found that the conciliated outcomes have not met their expectations or requirements. This mixed result shows the potential for and limitations of the complaints process. It demonstrates that alternative approaches are required to reduce discrimination and achieve the other DDA Objects.

3.2.3.2 Telecommunications-Related Complaints

Accessible telecommunications is a prerequisite of increasing importance for education, employment and social participation by people with disabilities; so the topic, especially for people who are deaf, received much prominence during the passage of the DDA through Parliament (HREOC 2003). The Scott V. Telstra complaint of 1993 was a watershed: putting the DDA on the map, giving basic real-time telecommunication to people who are deaf or hearing/speech impaired, and awakening industry to the reality that disability discrimination had become unlawful in Australia.

Geoffrey Scott, who is deaf, complained that Telstra did not provide him with a TTY on the same conditions as it provided telephone handsets to other domestic subscribers. The complaint was upheld, and discrimination was deemed to have occurred against Mr Scott and against all other telephone subscribers who required text telephony as an alternative to voice telephony. This was a landmark judgment which can be downloaded from http://www.humanrights.gov.au/disability_rights/decisions/comdec/1995/DD000060.htm. In a related decision on remedies, Commissioner Wilson specified that Telstra supply to persons who are profoundly deaf (and not eligible for a TTY under the Government's then Disability Strategy) the following:

The decision may be downloaded from http://www.humanrights.gov.au/disability_rights/decisions/comdec/1995/DD000050.htm. Under its Disability Strategy policy the government had recently established the NRS Telecommunications Equipment Access program, in association with the commencement of the National Relay Service, under which eligible people with disabilities were provided with a TTY subject to a means test. The provision of TTYs was absorbed into the Disability Equipment Programs of Telstra and Optus with the introduction of the Telecommunications Act 1997. The Scott case was also important in that it led to text connectivity when required by persons with disabilities being included in the specification of the Standard Telephone Service.

Bourk (2001) gives a detailed account of the Scott case, including details and analysis of Commissioner Wilson's judgment. Starting from 1975, when the Australian Telecommunications Commission was launched, Bourk describes the gradual recognition that dawned on both the Government and Telstra over the next twenty years that text connectivity for Deaf people was a fundamental element of universal access to the Standard Telephone Service. Bourk's description is insightful of both: the evolving regulatory environment for telecommunications, and the growing awareness of the needs and rights of consumers with disabilities. Bourk (2001), available at http://www.tomw.net.au/uso/ is a major contribution in recording the struggle of people with disabilities to equitable telecommunications access.

HREOC (2003) describes some typical telecommunications-related complaints.

3.2.4 Intervention in Court Proceedings

HREOC may intervene in court proceedings dealing with disability discrimination issues, provided that the court gives it leave to do so. HREOC plays an impartial and informative role to assist the court to interpret the DDA and its application in particular situations. This allows HREOC to bring accumulated knowledge and experience to the court's attention. This opportunity has been little-used to date, but HREOC remains available to intervene in this way when appropriate cases arise.

3.2.5 DDA Disability Standards

Section 31 of the DDA provides that the Federal Attorney General may introduce into the Parliament, Regulations under the DDA known as Disability Standards. Disability Standards may cover Employment, Education, Accommodation, Public Transport Services and Facilities, Accessible Premises, and the Administration of Commonwealth Government Laws and Programs. Specifically, in the present context, there is no provision for a DDA Standard on accessible telecommunications. The DDA was amended in 1999 to include accessible premises amongst the areas for which DDA Standards might be made. This creates the precedent, should it be deemed appropriate in the future, for a DDA amendment to provide for a Disability Standard on accessible telecommunications. HREOC released a background paper on Disability Standards in 1993, which is available at http://www.humanrights.gov.au/disability_rights/standards/issues93.htm.

A DDA Disability Standard becomes the law. Therefore, it is unlawful to contravene a DDA Disability Standard, whilst compliance with a Disability Standard is an absolute defence against a complaint. The purpose of a Standard is to confirm rights and clarify responsibilities. A Standard aims to provide certainty, whereas the DDA leaves much to be interpreted in the resolution of a DDA complaint.

The development of a Standard under the DDA is akin to a collective bargaining process. A Standard is supposed to accurately reflect and elaborate on the DDA, not ordinarily writing it up by increasing its powers or writing it down by using narrow definitions. Still it is necessary for aggrieved persons to seek redress by lodging complaints. However, the existence of a well-known and well-written Standard should help in resolving complaints. It is intended that compliance with a Standard be a complete defence for a respondent, even though the action being complained about may be discriminatory. Therefore, with a Standard, in practice, some theoretical rights under the DDA are almost certainly negotiated away.

Progress with the development of DDA Standards has been slow. After seven years of concerted effort an Accessible Transport Standard was approved late in 2002. Work is proceeding well with the development of standards for inclusive education and accessible premises, but progress has stalled on the development of an employment standard, and work has not seriously started on standards for accommodation or the administration of Commonwealth government laws and programs.

3.2.6 Granting by HREOC of Temporary Exemptions

Section 55 of the DDA gives power to HREOC to grant a temporary exemption to a person or organisation from specific provisions of the DDA, for a period not exceeding five years and on specific terms and conditions that HREOC may decide. HREOC is required to publish the details of the Temporary Exemption, together with the reasons for its decision and a summary of the evidence on which the decision was based.

The DDA is silent on the function of Temporary Exemptions, and it has been left to HREOC to develop a protocol for their application, consideration and determination. HREOC has published Guidelines on Application for Temporary Exemption under the DDA, available at http://www.humanrights.gov.au/disability_rights/exemptions/Exemption_guidelines/Exemption_guidelines.html.

HREOC's power to grant temporary exemptions has been unwelcomed by some in the disability community. Advocates have been concerned that service providers would seek to use the provision in an attempt to avoid their responsibilities under the ACT, and that HREOC might allow them to prevail. However, HREOC has been rigorous in its handling of Temporary Exemption applications. HREOC advises that when the DDA was introduced into Parliament, the purpose indicated for temporary exemptions was to allow time, where necessary, to make adjustments to comply with the DDA. General administrative law principles require that the power of the Commission under the DDA to grant exemptions should be exercised consistently with the objects of the DDA. HREOC has regarded temporary exemptions as a means to promote equality, where organisations seek complaint immunity whilst they work towards routine compliance with the DDA. In HREOC (2003) it is stated that HREOC has not been prepared to grant an exemption to organisations which simply want to avoid taking remedial action to comply with the DDA.

Some organisations have been hesitant to ask for temporary exemptions, in the belief that it would reflect poorly on them, even though they may have envisaged a phased compliance with the DDA. A significant number of temporary exemptions have been granted in the transport industry, as operators embarked on a progressive implementation of accessible services, conveyances and facilities.

3.2.7 Action Plans

Part 3 of the DDA provides for Action Plans. In determining whether compliance with the DDA's requirements would impose Unjustifiable Hardship on a respondent, the Court must consider an Action Plan given to HREOC, among other factors. The development and implementation of DDA Action Plans has been an important community-wide approach to raising awareness of the DDA and operating in a manner which is more inclusive of people with disabilities. An Action Plan is a strategy for changing those practices which might result in discrimination against people with disabilities. It helps to identify such practices and offers a program for change. The DDA provides that organisations may develop Action Plans to eliminate discriminatory practices and that they may be lodged with HREOC.

An Action Plan can help an organisation to:

A range of organisations in Australia have developed Action Plans. These include banks, members of the telecommunications industry, government agencies, community organisations and tertiary institutions. Despite HREOC's best endeavours to promote the benefits of Action Plans and its publication of documents to guide their development, only 250 Action Plans have been lodged over the past ten years, of which 12% belong to business enterprises.

An organisation which provides goods or services or which makes facilities available is deemed to be a service provider and may prepare and implement an Action Plan. An Action Plan must include the following provisions as a minimum. Any additional provisions must not be inconsistent with the minimum provisions.
(a) the devising of policies and programs to achieve the objects of this Act; and
(b) the communication of these policies and programs to persons within the service provider; and
(c) the review of practices within the service provider with a view to the identification of any discriminatory practices; and
(d) the setting of goals and targets, where these may reasonably be determined, against which the success of the plan in achieving the objects of the Act may be assessed; and
(e) the means, other than those referred to in paragraph (d), of evaluating the policies and programs referred to in paragraph (a); and
(f) the appointment of persons within the service provider to implement the provision referred to in paragraphs (a) to (e) (inclusive).

HREOC, at http://www.hreoc.gov.au/disability_rights/action_plans/index.html, states that an Action Plan is a way for an organisation to plan the elimination, as far as possible, of disability discrimination from the provision of its goods, services and facilities. HREOC advises that Action Plans should also include policies and practices concerning employees with disabilities. For organisations the development and implementation of Action Plans: enhances corporate image, delivers services more efficiently and accesses a wider market. The very process of developing the Action Plan is beneficial. Most Action Plans result from consultation with people with disabilities and their representative organisations, a review of policies and practices, and identification of barriers for people with disabilities in accessing services and facilities. They generally contain planned strategies to eliminate these barriers.

HREOC gives guidance on the development of Action Plans through documents available on its website. As well as giving general information HREOC gives specific advice to Commonwealth departments and agencies, State and Territory government organisations, businesses, tertiary education institutions and non-government organisations.

In the event of a complaint, HREOC is required by the DDA to consider the organisation's Action Plan. The success of an Action Plan, in terms of eliminating disability discrimination and in being used as a defence against complaints, will largely depend on the effectiveness of the actions taken. Section 11 of the DDA requires that in determining what constitutes Unjustifiable Hardship an organisation's DDA Action Plan shall be taken into account.

A service provider may, at any time, amend its Action Plan. It may give a copy of its Action Plan, or amendments thereto, to the Disability Discrimination Commissioner. The Commissioner is to make Action Plans publicly available, and may sell them for a prescribed fee. In particular, many Action Plans are freely downloadable from the HREOC website,

As well as being a tool for raising awareness, an Action Plan has the added benefit of counting positively rather than negatively for a service provider in its defence of a complaint lodged against it. However, compliance with an Action Plan, or an intent to do something under an Action Plan, is not a complete defence.

The DDA is not explicit about the content of an Action Plan, only its framework. Therefore, it is often the process of developing and reviewing an Action Plan, which is more important than the details of its content. Nonetheless, some Action Plans have been very good; they have forged a new standard for access and equity for people with disabilities.

More than 180 of the DDA Action Plans which have been given to the Disability Discrimination Commissioner may be downloaded by following links from http://www.hreoc.gov.au/disability_rights/action_plans/Register/register.html.

Telstra and Optus have developed DDA Action Plans which are available for download. They are discussed in Section 2.5. The TIO Action Plan is discussed in Section 3.5.3.

3.2.8 Conduct of Inquiries by HREOC

HREOC has held public inquiries as one of its important ways to promote DDA awareness and compliance. Inquiries have been held: at HREOC's own initiative; in response to specific complaints that raised systemic issues; to deal with exemption applications; and as requested by the Attorney General. The public inquiry process gives focus to important issues and facilitates their systematic analysis enhanced by broad community participation. Public inquiries have covered a variety of matters and have included:

3.2.9 Advisory Notes and Guidelines

Section 67 of the DDA confers certain functions on HREOC, including:
(k) to prepare, and to publish in such manner as the Commission considers appropriate, guidelines for the avoidance of discrimination on the ground of disability.

Apart from Guidelines for Providers of Insurance and Superannuation HREOC has chosen not to issue Guidelines as such. Instead, HREOC has issued Advisory Notes and FAQ files, but they amount to the same thing. These documents have provided advice to service providers to increase their understanding of what is appropriate in the provision of goods, services and facilities under the DDA, and what might be unlawful. They have also enabled people with disabilities to have a clearer understanding of the extent of their rights in specific situations under the DDA.

HREOC's advisory note on telecommunications equipment and the DDA, discussed in Section 3.6, is at http://www.hreoc.gov.au/disability_rights/communications/equipment.htm.

3.3 Telecommunications Act 1997

The Telecommunications Act 1997 sets up a system for regulating telecommunications in Australia in a competitive environment. It replaced the Telecommunications Act 1991. It should be read in conjunction with the Telecommunications Consumer Protection and Service Standards Act 1999, which is discussed in Section 3.4.

Schedule 1 to the Act sets out standard carrier licensing conditions, by delegation of Section 61. They include the requirement for industry development plans. A carrier must have an industry development plan for the development in Australia of: industries involved in the manufacture, development or supply of facilities; and research and development activities relating to such industries. An industry development plan must be given to the Industry Minister, and a summary must be made available to the public. A carrier must comply with the part of its plan that relates to research and development. Clause 6 details the contents of an industry development plan.

(2) The plan must include any relevant particulars of the carrier's strategic commercial relationships, including (but not limited to):
…
(e) the carrier's relationships in connection with the production and supply of equipment for use by people with disabilities.
(3) The plan must include any relevant particulars of the carrier's activities in relation to research and development, including (but not limited to) matters in connection with:
…
(e) research and development to address the needs of people with disabilities.
(4) The plan must include any relevant particulars of the carrier's export development plans, including (but not limited to) export development plans relating to equipment for use by people with disabilities.

DCITA (2003) lists summaries of almost 50 Telecommunications Carrier Industry Development Plans at http://www.dcita.gov.au/Article/0,,0_1-2_1-3_143-4_112329,00.html. TEDICORE (2001) provides information and advice concerning people with disabilities for Carriers developing Plans, but the number of enquiries from Carriers has been very low. Apart from Telstra and Optus, most of the Carriers appear to have very little interaction with the representatives of people with disabilities. The apparent lack of interest and awareness concerning disability-related issues in the Carrier Plans suggests that either these provisions are ineffectual or that there is unrealised potential for more attention to be paid to services and equipment for people with disabilities. Telstra's IDP is exceptional, since it gives detailed coverage of disability issues: Disability Equipment Program, DDA Action Plan, public payphone (including TTY payphone) initiatives, Centre for Accessibility, consultative forums and disability research. It also outlines planned initiatives concerning customers with disabilities.

The telecommunications regulatory trend has been moving towards streamlining the requirements for Industry Development Plans. In particular, amendments to the Telecommunications Competition Act 2002 allow for such streamlining of IDPs. They allow the ACA to grant exemptions to carriers and carrier applicants from providing IDPs. The exemptions apply to small carriers (annual turnover below $5 million and capital expenditure below $20 million), and to carriers primarily engaged in direct provision of services to tertiary, research or educational institutions.

The following recommendation is not intended to increase the requirements of IDPs; rather, its purpose is to review the efficacy of the current disability-related provisions and propose appropriate adjustments if deemed beneficial. Such adjustments might raise disability awareness with the telecommunications industry, might lessen the administrative burden on carriers and carrier licence applicants, or might do both.

Recommendation 3: Telecommunications carrier industry development plans

That HREOC should consider holding discussions with DCITA to review the purposes and effectiveness of the disability-related provisions in Schedule 1 of the Telecommunications Act 1997 which cover Telecommunications Carrier Industry Development Plans.

Section 112 of the Act makes a statement of regulatory policy concerning the industry codes and standards described in Part 6:
(1) The Parliament intends that bodies or associations that the ACA is satisfied represent sections of the telecommunications industry should develop codes (industry codes) that are to apply to participants in the respective sections of the industry in relation to the telecommunications activities of the participants.
(2) The Parliament intends that the ACA, …, will act in a manner that, in the opinion of the ACA, enables public interest considerations to be addressed in a way that does not impose undue financial and administrative burdens on participants in sections of the telecommunications industry.
(3) In determining whether public interest considerations are being addressed in a way that does not impose undue financial and administrative burdens on participants in sections of the telecommunications industry, the ACA must have regard to:
(a) the number of customers who would be likely to benefit from the code or standard concerned; and
(b) the extent to which those customers are residential or small business customers; and
(c) the legitimate business interests of participants in sections of the telecommunications industry; and
(d) the public interest, including the public interest in the efficient, equitable and ecologically sustainable supply of:
(i) carriage services; and
(ii) goods for use in connection with carriage services; and
(iii) services for use in connection with carriage services;
in a manner that reflects the legitimate expectations of the Australian community.

Section 113 gives examples of the areas where codes and standards might be made. They include: consumer information; prices, terms and conditions; credit management; billing; and service quality. This provision for codes and standards does not extend to the making of technical standards referred to in Part 21. The Australian communications Industry Forum, discussed in Section 3.5.2, has accreditation with Standards Australia and has been the principal telecommunications body to develop industry codes.

Part 21 of the Act specifies a regime for technical regulation. The ACA may make the following types of standards:
(a) technical standards about customer equipment and customer cabling (S.376);
(b) standards relating to the features of customer equipment that are designed to cater for the special needs of persons with disabilities (s.380); and
(c) technical standards about the interconnection of facilities (S.384),
and the ACA may require customer equipment and customer cabling to be labelled so as to indicate compliance with standards (S.407).

Section 380 of the Act allows the ACA to make a standard relating to specified customer equipment if:
(a) the customer equipment is for use in connection with the standard telephone service; and
(b) the customer equipment is for use primarily by persons who do not have a disability; and
(c) the standard relates to the features of the equipment that are designed to cater for any or all of the special needs of persons with disabilities.

Section 380 gives two examples of disability access features:
(a) an induction loop that is designed to assist in the operation of a hearing aid;
(b) a raised dot on the button labelled "5" on a telephone.

Section 383 specifies that in determining whether a person has infringed section 24 of the DDA in relation to the supply or provision of customer equipment, it must be taken into account as to whether the customer equipment complies with a standard in force under section 380, but other matters can be taken into account as well. Apart from this reference to the DDA, there is no reference to compliance with disability standards under the Telecommunications Act.

Disability standards are discussed in Section 4.6.

Section 593 of the Act provides for funding of consumer representation and research. It states:
(1) The Minister may, on behalf of the Commonwealth, make a grant of financial assistance to a consumer body for purposes in connection with the representation of the interests of consumers in relation to telecommunications issues.
(2) The Minister may, on behalf of the Commonwealth, make a grant of financial assistance to a person or body for purposes in connection with research into the social, economic, environmental or technological implications of developments relating to telecommunications.

For the year 2003-2004 up to $700,000 has been allocated for consumer representation and up to $100,000 has been allocated for research.

The Consumers' Telecommunications Network (CTN) is funded under Section 593 of the Act, as are TEDICORE (Telecommunications and Disability Consumer Representation) and DTAN (Deaf Telecommunications Access and Networking). TEDICORE and DTAN are projects auspiced by Blind Citizens Australia and the Australian Association of the Deaf. Their work is discussed in Section 4.2. Other peak disability organisations also received small funding grants in 2002-03, mostly to cover sitting fees for consumer representatives on consultative forums.

The Telecommunications (Equipment for the Disabled) Regulations 1998 confirmed that provision of a Standard Telephone Service under the Universal Service Obligation includes the supply of equipment, goods or services for people with a disability as may be specified in the Regulations. The Regulations specify types of customer equipment for connection by persons with disabilities with the National Relay Service (text telephones), and for connection by persons with disabilities with persons without disabilities, provided that provision of the equipment does not constitute an unjustifiable hardship. The Regulations list the equipment with examples of both generic equipment types and particular models or brand names.

The specified text telephone equipment is:
(a) Equipment which facilitates text to text communication through the telephone network;
(b) Equipment which facilitates data transmission over the telecommunications network; and
(c) Equipment which facilitates the transmission of data over the telecommunications network and its transfer into Braille.

The specified equipment, that enables a person with a disability using the Standard Telephone Service to communicate effectively with a person without a disability, is:
(a) A standard rental telephone handset which includes one touch dial memory, a lightweight handset and a built-in hearing aid coupler;
(b) A telephone which amplifies the incoming caller's voice to suit the listener;
(c) A telephone which amplifies the speaker's voice, allowing the speaker to adjust the speech level to suit the listener;
(d) A hands-free telephone for a person who cannot hold a telephone handset;
(e) An ancillary telecommunications product which has adjustable volume, tone and pitch controls to assist the user to hear the telephone ringing;
(f) An ancillary telecommunications product which is a visual alert that there is an incoming call;
(g) An ancillary telecommunications product which allows the connection of a second piece of equipment;
(h) An ancillary telecommunications product in which the telephone handset is cradled, providing hands-free operation; and
(i) A telephone adapting device which allows a person with a cochlear implant to have access to the standard telephone service.

3.4 Telecommunications (Consumer Protection and Service Standards) Act 1999

The Telecommunications (Consumer Protection and Service Standards) (TCPSS) Act 1999 harmonises the previous consumer-related provisions of the Telecommunications Act 1997 and the Trade Practices Act 1974. It is an important starting point for consumer protection and service guarantees for all telecommunications customers, including people with disabilities. Section 4 of the Act states that the following is a simplified outline:

Section 6 of the Act defines a standard telephone service as:
… a carriage service for each of the following purposes:
(a) the purpose of voice telephony;
(b) if:
(i) voice telephony is not practical for a particular end user with a disability (for example, because the user has a hearing impairment); and
(ii) another form of communication that is equivalent to voice telephony (for example, communication by means of a teletypewriter) would be required to be supplied to the end user in order to comply with the Disability Discrimination Act 1992;
the purpose of that form of communication;
(c) a purpose declared by the regulations to be a designated purpose for the purposes of that provision;
…

This definition refers to text connectivity for people who are deaf or speech/hearing impaired as a substitute for voice telephony. Videocommunication for Deaf people using Auslan might be deemed to be an appropriate substitute for voice telephony, if: it was technically feasible, terminal equipment was readily available, and unjustifiable hardship was not deemed to apply. However, the definition of the Standard Telephone Service (STS) does not specify whether reference is to fixed or mobile services. This has been a cause of much confusion throughout the community of interest. Whilst DCITA confirms that the STS is technologically neutral, and is without restriction to fixed line services; some disability advocates have formed the impression that the STS is restricted to fixed line services. This confusion probably results from the linkage between the STS and the Universal Service Obligation (USO).

Part 2 of the Act describes the universal service regime. Its purpose is to give effect to the following policy principles:
(a) all people in Australia, wherever they reside or carry on business, should have reasonable access, on an equitable basis, to:
(i) standard telephone services; and
(ii) payphones; and
(iii) prescribed carriage services; and
(iv) digital data services;
(b) the universal service obligation described in section 9 and the digital data service obligation described in section 10 should be fulfilled:
(i) effectively, efficiently and economically; and
(ii) in ways that are consistent with Australia's open and competitive telecommunications regime; and
(iii) in ways that are, as far as practicable, responsive to the needs of consumers;
(c) the fulfilment of the universal service obligation described in section 9, and the digital data service obligation described in section 10, should generally be open to competition among carriers and carriage service providers;
(d) specific and predictable funding arrangements to advance the fulfilment of the universal service obligation, particularly in high cost areas, should be available;
(e) providers of telecommunications services should contribute, in a way that is equitable and reasonable, to the funding of the universal service obligation and digital data service obligation;
(f) information on the basis on which decisions are made for the purposes of the universal service regime should generally be open to public scrutiny;
(g) the universal service regime should be flexible and able to deal with rapid changes in both the telecommunications industry and the needs of consumers.

Telstra is the current default Universal Service Provider. Telstra, by contract with the Commonwealth Government, provides services to meet the universal service and digital data obligations specified in the universal service regime.

Section 9 of the Act defines the universal service obligation as the obligation:
(a) to ensure that standard telephone services are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business - and includes the supply of such services on request; and
(b) to ensure that payphones are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business and includes the supply, installation and maintenance of payphones; and
(c) to ensure that prescribed carriage services are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business - and includes the supply of such services on request.

Section 10 of the Act defines the digital data obligation as provision of a 64kbit/s digital connection, equivalent to a basic rate ISDN channel. This is not to be confused with the commitment for universal dialup access to the Internet at a minimum of 19.2kbit/s introduced following the Besley report.

Under the Universal Service Regime the Universal Service Provider is required to take all reasonable steps to ensure that Standard Telephone Services are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business. Although a variety of carriage services are potentially included in the definition of the Standard Telephone Service, the Universal Service Obligation does not require the Universal Service Provider to provide every possible type of Standard Telephone Service. The obligation is to ensure reasonable access to a 'first phone' for all Australians. ,

Part 3 of the Act establishes the National Relay Service (NRS), which provides persons who are Deaf or who have a hearing or speech impairment with access to a standard telephone service on terms, and in circumstances, that are comparable to the access other Australians have to a standard telephone service. The NRS contract is managed by DCITA on behalf of the Commonwealth, and NRS performance is monitored by the ACA. Costs of the NRS are funded by a levy on the telecommunications industry. The NRS is discussed in detail in Section 4.4.

Part 6 of the Act specifies the Telecommunications Ombudsman Scheme (TIO). Each carrier and each eligible carriage service provider must enter into the TIO scheme, where eligible service providers are those companies whose customers are residential and small business consumers who purchase: standard telephone services, public mobile telephone services or Internet connectivity. The TIO scheme provides for the ombudsman to investigate, make determinations relating to or give directions relating to: complaints made by customers about carriage services. The TIO scheme is funded by the telecommunications industry. It is discussed in more detail in Section 3.5.3.

Part 8 of the Act deals with the provision of emergency services. The ACA must make a written determination on the provision of emergency services. Such determination is to be made having regard to twelve objectives, which include:
(a) the objective that a carriage service provider who supplies a standard telephone service should provide each end user of that standard telephone service with access, free of charge, to an emergency call service, unless the ACA considers that it would be unreasonable for such access to be provided;
(g) the objective that, from the perspective of an ordinary end user of a standard telephone service, there appears to be a single national emergency call system;
(h) the objective that reasonable community expectations for the handling of calls to emergency service numbers are met;
(i) the objective that carriage services used to make calls to an emergency service number should, as far as practicable, provide the emergency call person concerned with automatic information about:
(i) the location of the caller; and
(ii) the identity of the customer of the service being used by the caller;

The National Relay Service provides 106 access to emergency services for Deaf people and people with hearing/speech disabilities using text connectivity.

3.5 Industry Regulation

3.5.1 Australian Communications Authority

The Australian Communications Authority (ACA) is responsible for regulating telecommunications and radiocommunications, including promoting industry self-regulation. The ACA also has important consumer protection responsibilities. The ACA was established under the Australian Communications Authority Act 1997, and exercises powers under relevant laws including the Telecommunications Act 1997 and the TCPSS Act 1999.

The ACA licenses telecommunications carriers, ensures compliance with carrier licence conditions and service provider rules, and monitors service performance and quality. The ACA also administers legislative provisions relating to protection of consumers through safeguards and service guarantees. The Universal Service Regime is administered by the ACA to ensure reasonable and equitable access across Australia to standard telecommunications services. The ACA also manages the NRS contract.

Industry self-regulation is encouraged through the development of voluntary industry codes of practice and technical standards, and the Australian Communications Industry Forum (ACIF) was established by the communications industry to support this process. The ACA has the power to request that codes of practice be developed, and to determine and enforce mandatory standards (including technical standards) where necessary.

Part 6 of the ACA Act 1997 provides for the establishment of advisory committees, to assist the ACA in performing any of its functions. In particular, it mandates that the ACA must establish a Consumer Consultative Forum, to assist the ACA to perform its functions in relation to matters affecting consumers. ACA's Consumer Consultative Forum meets regularly, and includes representation of consumers with disabilities.

3.5.2 Australian Communications Industry Forum

The Australian Communications Industry Forum (ACIF) was established in 1997 to implement and manage communication self-regulation. It is owned and funded by the telecommunications industry. Its role is to develop and administer technical and operating arrangements that promote both the long-term interests of end-users and the efficiency and international competitiveness of the Australian communications industry. This involves:

The main work of ACIF in the development of industry codes and standards is carried out by Reference Panels and Working Committees. Two important reference panels are the Customer Equipment and Cabling Reference Panel (CECRP) and the Consumer Codes Reference Panel (CCRP). Working groups may also be formed to address specific issues. An example of one such initiative is the ACIF working group on any-to-any text connectivity for people who are deaf or hearing/speech impaired (refer to Section 4.5). The ACIF has been very mindful of the telecommunications needs of people with disabilities, and has taken several initiatives to explore important issues.

The ACIF Disability Advisory Body (DAB) provides professional advice to ACIF regarding the implications for telecommunications consumers with disabilities of ACIF's proposed Codes and Standards. The advice is provided at the project proposal stage of each new Code and Standard. The DAB advises on the extent of the disability implications according to the following:

The DAB also provides professional advice as to appropriate methods of consultation/involvement in the development of an ACIF Code/Standard

The ACIF G586 guidelines give guidance to ACIF Reference Panels and Working Groups on how to meet the needs of customers with disabilities when drafting Industry Codes and Industry Standards. The guidelines help to raise awareness of accessible telecommunications issues among industry representatives who participate in standards development.

3.5.3 Telecommunications Industry Ombudsman Scheme

The Telecommunications Industry Ombudsman Scheme (TIO) was established by the Commonwealth Government in 1993. It provides a free alternative dispute resolution service to residential and small business consumers who have been unable to resolve a complaint directly with their telephone company or Internet service provider.

Telecommunications companies in Australia must be members of the TIO scheme if they:

These companies bear the cost of the TIO scheme based on the number and complexity of the complaints about them which are received and processed by the TIO. In June 2002 there were 963 members of the TIO Scheme, a decrease of 12% from the previous year. More than 80% of members are Internet Service Providers.

The TIO is an independent, non-profit, consumer/industry neutral organisation. It is referred to as an 'office of last resort', in that it does not investigate a complaint until the service provider has been given a reasonable opportunity to resolve the complaint without TIO involvement. As an Alternative Dispute Resolution (ADR) scheme, the TIO is different from traditional court processes and tries to resolve disputes quickly and without undue bureaucracy. It emphasises good industry practice and what is fair and reasonable, rather than seeking a resolution based on strictly legal grounds. People may lodge complaints with the TIO: in person, in writing (including email) or by telephone (including TTY access). The TIO is a free service to complainants, so personal assistants such as Auslan interpreters are paid for by the TIO.

The boundaries of the TIO's jurisdiction and extent of its authority are specified in the TCPSS Act 1999, which provides that binding determinations up to $10,000 may be made. The service provider, but not the complainant, must comply with the decision of the TIO. The TIO may investigate complaints involving:

There are some complaints that the TIO cannot deal with, which fall under the direct jurisdiction of the Australian Communications Authority (ACA) or the Australian Competition and Consumer Commission (ACCC).

During 2001-2002 there were 62,275 complaints to the TIO dealing with 70,234 complaint issues. It is estimated that 15% to 20% of complaints cover more than one issue. The breakdown for service types among complaint issues was 40,303 for fixed line services, 20,434 for mobile services, and 9,497 for Internet services. This is a description of how complaints are processed.

The number of complaints that relate to a consumer's disability appears to be very low, below 0.5%. The TIO has recently reviewed its complaint records system in order to obtain better data on disability-related consumer complaints in the future. Undoubtedly there are negative interactions for consumers with disabilities which do not end up in formal complaints, either with the TIO or HREOC. On the one hand, some complaints are outside the jurisdiction of the TIO; and, on the other hand, the perception persists that the HREOC complaint process is drawn out and not likely to result in a satisfactory resolution. Examples of negative consumer interactions that may not result in formal complaints are: matters concerned with the provision of disability equipment, and unsatisfactory service from retail or call centre staff. It may be observed that the TIO has particular expertise in the resolution of telecommunications complaints, and that HREOC has particular expertise in the resolution of disability complaints. There may be some benefit derived from communication between the two agencies, leading to initiatives that may help to: reduce the level of complaints in the future, increase the rate of satisfactory complaint resolution, and provide information to consumers with disabilities and their advocates.

Recommendation 4: HREOC and TIO disability-related complaints

That HREOC should consider meeting with the TIO to compare trends in complaints that involve people with disabilities and telecommunications, in order that the two agencies can provide advice to disability advocates and consumers generally about HREOC or DDA complaints.

In February 2003 the TIO launched its DDA Action Plan. It has five main objectives and implementation is in three stages: June 2003, January 2004 and July 2005.
1. Corporate culture: to develop and maintain a responsive and anti-discriminatory corporate culture.
2. Accessible information: to improve accessibility to information about TIO services.
3. Accessible complaint resolution services: to provide equal access to the TIO's complaint resolution services.
4. Physical environment: to ensure that the TIO's physical environment is accessible to all.
5. Review and evaluation: to ensure that the DAP is regularly reviewed and evaluated.

3.6 HREOC Advice on Customer Equipment

In August 2001 HREOC issued an Advisory Note on the DDA and Customer Equipment, responding to a request from ACIF for clarification of rights and responsibilities under the Disability Discrimination Act regarding the provision of equipment which is accessible to and usable by people with disabilities. The document is available at http://www.humanrights.gov.au/disability_rights/communications/equipment.htm.

The HREOC advice is summarised below. There are three cases.
A) Provision of equipment as part of or in association with telecommunications service: CSPs are obliged to make accessibility equipment available. This obligation is subject to unjustifiable hardship for the supplier, but goes beyond the standard telephone service and universal service obligation to include mobile phones.
B) Equipment not provided as part of a service: This situation is not so clear. On the face of it, suppliers do not have to supply accessible equipment if it is outside their normal product range.
C) Service providers which do not provide any customer equipment: Such organisations do not have a liability under the DDA to provide accessible customer equipment.

Carriage service providers which provide customer equipment as part of or in association with their service (whether directly or through agents, partners, franchisees, etc) are obliged to provide equipment which is accessible to and usable by people with disabilities - unless it can be shown that this would involve unjustifiable hardship. This was established in the Scott case, available at http://scaleplus.law.gov.au/html/ddadec/0/95/0/DD000060.htm.

The DDA generally favours accessibility of mainstream services, rather than the provision of special services. As stated in HREOC (2001b): "The Disability Discrimination Act requires accessibility of the services a service provider is in the business of providing, rather than requiring provision of new or different services which might better suit the needs of a customer with a disability." In the Scott case Telstra was required to provide a TTY in place of a standard handset, to enable access to the mainstream carriage service. This requirement to provide an accessible interface to the carriage service is not restricted to the Standard Telephone Service or the Universal Service Obligation specified in the TCPSS Act 1999. In particular the DDA accessible interface requirement covers both fixed line and mobile telephone services. It requires that customer equipment be accessible and usable, where this does not constitute an unjustifiable hardship, and that it does not conflict with assistive devices such as hearing aids. Accessibility may be achieved by ensuring: that mainstream equipment is usable, or that specialist equipment is available, or some combination of these alternatives.

Where specialised equipment is required, service providers are cautioned that it may be construed as discriminatory if this limits consumer choice of carriage services at comparable prices, and if consumers with disabilities are not provided with information about the availability of specialist customer equipment.

The inherent difficulties of a specialist equipment program suggest that the adoption of universal design principles is beneficial. Sometimes there are technical difficulties to implement universal design, but a universal design approach would always be favourably viewed.

In determining accessibility requirements and assessing discrimination, any disability standards under the Telecommunications Act would be taken into account. In addition, any published access guidelines and overseas standards would also be taken into account as an indication of good practice, community expectations and technical feasibility.

The DDA outlaws discrimination in the provision of goods, as well as services. It is clear about the accessibility of customer equipment when bundled with a carriage service, but it is not so clear when the customer equipment is sold separately. The DDA does not require provision of different goods from those a provider is in the business of supplying, simply because the goods currently provided are not useful to people with a particular disability, just as it does not require a provider to supply a service which is a different service from that which it normally provides.

Some barriers to access which might be thought to be part of the goods or equipment may be found instead to be incidental conditions or requirements for access or use of the equipment, and might be found to involve unlawful discrimination. the distinction between features of the goods or items of equipment themselves (not covered by the DDA) and conditions or requirements for their use or access (covered by the DDA) would need to be determined on the facts of each case. With digital technology enabling input and output in a variety of formats, fewer barriers to access might be accepted as essential features of the equipment or facilities concerned than was previously the case with analogue technologies.

Some uncertainty here, including the possibility of different interpretations based on who supplies telecommunications equipment, suggests that the development of consistent standards might be beneficial in providing certainty for both industry and consumers, rather than waiting for guidance through the results of DDA complaints.

Where carriage service providers do not supply equipment in association with their service, such suppliers do not have an obligation under the DDA to supply accessible equipment.

One approach to the avoidance of discrimination is for telecommunications consumer impact statements to be lodged with the ACA prior to the introduction of new carriage services. The DDA does not impose any procedural requirements on providers making new services or equipment available to ensure in advance the accessibility of that equipment. Prior consultation may give companies useful information that could avert discrimination complaints later on. If complaints do arise, expert advice received during prior consultation on access issues in relation to a product or service could help to determine whether an adjustment to the service or product would impose unjustifiable hardship.

3.7 Commonwealth Disability Strategy

The Commonwealth Disability Strategy at http://www.facs.gov.au/disability/cds/cds/cds_index.htm is the Government's strategic framework for inclusion and participation by people with disabilities in Government policies, programs and services. The Strategy recognises that the Commonwealth has an impact on the lives of people with disabilities through its many programs, services and facilities, and seeks to ensure their full community participation. Commonwealth organisations are obligated to remove barriers to access and participation, thus ensuring that people with disabilities have the same access to buildings, services, information, employment, education, sport and recreational activities as everyone else in the community.

The Strategy complements other government initiatives, and is based on the principles of: equity, inclusion, participation, access and accountability. It encourages organisations to:

The central elements of the Strategy are:

Governments are large purchasers of goods and services, both directly and through grants to non-government organisations of all sorts. Thus governments can exert significant market influence. Astbrink (2001) points out that the Department of finance and Administration revised the Commonwealth Procurement guidelines in 2001. Disability issues in relation to the Commonwealth Disability Strategy are mentioned outside the guidelines themselves, in an advisory context on implementation of the guidelines. Such a tentative first step towards an inclusive procurement policy has been frustrating for consumer advocates.

A good model for inclusive public procurement is embodied in the so-called Section 508 amendment of the Rehabilitation Act in the United States. Section 508 requires that when Federal agencies develop, procure, maintain, or use electronic and information technology, they shall ensure that the electronic and information technology allows Federal employees with disabilities to have access to and use of information and data that is comparable to the access to and use of information and data by Federal employees who are not individuals with disabilities, unless an undue burden would be imposed on the agency. Section 508 also requires that individuals with disabilities, who are members of the public seeking information or services from a Federal agency, have access to and use of information and data that is comparable to that provided to the public who are not individuals with disabilities, unless an undue burden would be imposed on the agency. More details are given in Section 5.2.3.

One reason that consumer advocates are calling for an inclusive public procurement policy stems from their fear that, as the Section 508 amendment starts to have its desired effect in the United States, without such a policy Australia will become a dumping ground for inaccessible technology. Whilst it is difficult to provide evidence of endemic practices that justify this fear, the prolific use of inaccessible PDF files on government websites shows a widespread absence of disability awareness and lack of inclusive practices. Such a policy would have widespread beneficial effects for people with disabilities - both employees of government agencies and staff of non-government organisations receiving commonwealth funds, and service recipients.

Recommendation 5: Inclusive public procurement policy

That HREOC should initiate discussions with the Department of Finance and Administration, and with other relevant organisations, towards an inclusive Federal Government public procurement policy, modelled on Section 508 of the Rehabilitation Act in the United States.

Next part: Part 4